Delhi District Court
State vs . : Anoop on 14 September, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 485/17
FIR No. : 127/17
U/s : 302/201 IPC
P.S. : Alipur
State Vs. : Anoop
S/o Sh. Rajan Singh
R/o Village Pundri, PS:Alau,
Tehsil:Bhogavn, District
Mainpuri, U.P.
Offence complained of : 302/201 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 10.08.2017
Date of Judgment : 14.09.2018
JUDGMENT
1. On 26.03.2017 at 6:01 pm an information was received that near Alipur Idgah in the drain a bike is lying. DD No.19A was recorded. ASI Rattan Lal reached the spot and he found one motorcycle No. DL 11 SF 7888 lying there. He came to know that this motorcycle is registered in the name of Smt. Mukesh w/o Sh. Satbir. He reached the address of State Vs. Anoop SC No.127/17 :: 1 ::
Smt. Mukesh i.e. H.No.1156, Bada shiv Mandir road, Alipur Delhi. Smt. Mukesh told that this vehicle was driven by her son Manoj, aged 27 years who is missing since 24.03.2017 at about 2:00 pm. It was also told that Manoj was a drug addict. Missing report regarding Manoj was recorded vide DD No.25A. Efforts were made to trace Manoj but Manoj could not be traced.
2. During investigation they came to know that Manoj was lastly seen in the company of Anoop. Efforts were made to trace Anoop but he was not found. On 10.04.2017 Mukesh came to the police station and gave the statement telling that on 24.03.2017 at about 8:00 am she went to Haridwar. On 26.03.2017 she returned. Her daughter told her that on 24.03.2017 at about 1:00 pm Manoj left the house on motorcycle No:DL 11 SF 7888 and had not returned. On the same day at about 7:30 pm police from PS: Alipur came there and told that a motorcycle No. DL 11 SF 7888 is lying in the drain of Alipur - Budh Pur. At that time she has lodged the missing report of her son. She was searching for her son of her own also. She had come to know that her son Manoj was seen along with Anoop S/o Sh. Rajan R/o Handi Pana Chaupal, Nanhe ka Makan, Alipur and permanent r/o Village Pundri, PS: Alau, Distt.:Mainpuri, U.P. Anoop is also missing from his house. His son was also carrying mobile phone No. State Vs. Anoop SC No.127/17 :: 2 ::
9643368506 FIR was got registered. Anoop was not found at his addresses and was found missing.
3. Statement of Mahipal was recorded who stated that on 24.03.2017 while he was going towards the house of his sister Mukesh he had seen his nephew Manoj on motorcycle TVS Star City No. DL 11SF 7888 near Bada Shiv mandir Alipur along with his friend Anoop. Manoj was driving the motorcycle and Anoop was sitting on the rear seat. After seeing him Manoj stopped the motorcycle and told him that he is going to the market.
4. On 14.04.2017 Anoop was apprehended. He was arrested. He confessed about the commission of crime. He pointed out the place of occurrence. He got recovered his pyjama having blood stains and also the wallet of the deceased having documents and ring of the deceased. He also pointed out the place where he had thrown the motorcycle of the deceased. The TIP of the case property recovered was got conducted, wherein Smt. Mukesh identified the same. After completion of investigation charge sheet was filed. Ld. MM after complying with the provision of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
5. Accused was charged for the offence punishable u/s State Vs. Anoop SC No.127/17 :: 3 ::
302 IPC. Accused pleaded not guilty and claimed trial.
Thereafter, case was fixed for prosecution evidence.
6. Sh. Bhagwan Asstt. From Transport Authority was examined as PW-1. He has brought the record of vehicle No. DL 11 SF 7888. As per the record this vehicle is in the name of Smt. Mukesh W/o Sh. Satbir R/o 1156, Bada Shiv Mandir Road village Alipur, New Delhi. She is the first owner of the vehicle. It is 110 cc TVS Starcity Red and Black colour motorcycle. He proved the copy of record as Ex.PW1/A. The testimony of witness has gone unchallenged and uncontroverted.
7. Ct. Naveen was examined as PW-2. He is the Asstt. Draftsman in the mapping section. He deposed that on 23.05.2017 he along with Inspector Satish Kumar visited under construction factory No. N-129 Sector 5 DSIDC Bawana Delhi. ASI Satya Narain was also called there from PS: Shahbad Dairy. He took the rough notes and measurements at the instance of ASI Satya Narain. Thereafter, they returned to the police station. On 30.05.2017 he prepared the scaled site plan Ex.PW2/A. He destroyed the rough notes and measurements taken by him.
8. During cross-examination by defence counsel he stated that he prepared the site plan of factory No. N-129, Sector-5 Industrial Area Bawan, however in his statement the State Vs. Anoop SC No.127/17 :: 4 ::
number is mentioned as N-127. He denied the suggestion that he has not got any such information to visit the site. They remained on the spot for about 30 minutes. There was no other person on the spot.
9. SI Aakashdeep was examined as PW-3. He deposed that on 27.03.2017 he along with photographer HC Manoj, HC Chhotey Khan, finger print proficient reached at plot No. N-129, Sector-5 Bawana in mobile van. ASI Satya Narain and other police officials met them there. He inspected the scene of crime and HC Manoj took the photographs. He prepared the crime scene report Ex.PW3/A.
10. During cross-examination by the defence he stated that he told the IO in his statement that he along with his team reached property No. N 129 Sector-5 Bawana. He was confronted with his statement where the address was mentioned as N-127 Sector-5 Bawana. He received the call from control room at 12:40 pm. They reached the spot at 1:10 pm. They remained there till 1:40 pm.
11. Sh. Vikram Ld. MM was examined as PW-5. He deposed that on 22.05.2017 the application for TIP of case property was assigned to him by Ld. CMM Sh. Vishal Gogne vide application Ex.PW5/A. The TIP was fixed for 15.05.2017. IO produced the property for identification and the property for mixing. The proceedings are proved as State Vs. Anoop SC No.127/17 :: 5 ::
Ex.PW5/B. The case property was correctly identified by the witness Smt. Mukesh. The certificate is appended by him regarding the correctness of proceedings which is Ex.PW5/C. The copy of TIP was provided to the IO vide application Ex.PW5/D. The testimony of witness has gone unchallenged and uncontroverted.
12. Smt. Mukesh was examined as PW-6. She deposed that she is having three daughters Sunena, Neha and Rajni and one son Manoj now deceased. On 24.03.2017 she left her house at about 8:00 am to attend her duties in Alipur Govt. Dispensary. At about 3:00 pm she left for Haridwar.
She reached Haridwar at about 7-8 pm. On the same night she received call of her daughter Sunena who informed that her son Manoj had not reached home. She told her daughter he had gone for work in the marriage party as waiter and would come late or may be in the morning. Next morning her daughter Sunena again made a call and informed that Manoj had not reached home. She made call to the friends of Manoj on the numbers saved in the contacts of her mobile phone No.8447445941. Manoj was not found anywhere. She made a call on the mobile phone of Anoop but the same was found switched off. Mobile phone Number of Anoop starts from digit
70. Mobile phone of her son was going switched off.
13. On 25.03.2017 in the evening hours she again made a State Vs. Anoop SC No.127/17 :: 6 ::
call to her daughter Sunena and inquired about Manoj. Sunena told her that Manoj had not reached home. She made a call at the house of her parents and talked with her Bhabhi Anu and inquired about Manoj. She told that Manoj had not come to their house. After taking tea she left for Delhi.
14. On 26.03.2017 she left for Delhi and reached Delhi at 6:00 pm. Sunena told that Manoj had not reached home. She went in search of her son. Her daughter along with her Nanad Sushila also went in search of Manoj. When she was at home two police officials came at her house and inquired about motorcycle No. 7888 make TVS Star, she told that this motorcycle belongs to her son. She went to the police station along with those police officials. She was told that she is not aware of her son Manoj but the motorcycle has been found. On the same day she lodged missing report of her son Manoj at 8:10 pm which is Ex.PW6/A. Her brother told her that he had seen Manoj with one boy whom he can identify. He also told that he had seen Manoj with that boy earlier also when he visited their house with Manoj. She also reached the house of Anoop searching for her son but house of Anoop was found locked. She inquired from the neighbors about Anoop. They informed that this house belongs to Sundri (mother of Anoop). It was also informed that Sundri is State Vs. Anoop SC No.127/17 :: 7 ::
residing in godown with her daughter. She along with her relative went to the godown where she met Sundri and inquired about Anoop. Sundri told her that her son had not returned home since 24.03.2017 1:00 pm. Daughter of Sundri informed that her brother is roaming in the village. Thereafter, she returned home and started searching her son. Police called all the boys whose numbers were saved in her mobile phone. All those boys came to the police station. Her brother also went to the police station but after seeing those boys he stated that he had not seen any one of those boys along with Manoj.
15. On 10.04.2017 she gave statement to the police that her son was taken away by Anoop. She proved her statement as Ex.PW6/B. Some boys informed her that Anoop was seen in the village Alipur on 26.03.2017. Police searched for Anoop but his house was found locked. Witness correctly identified the accused.
16. Anoop was arrested on 11.04.2017 but she came to know only on 12.04.2017. Her brother Mahipal @ Sanjay identified accused in the police station as the person with whom he had seen Manoj.
17. Ld. APP cross-examined the witness with the permission of the court as the witness resiled from her earlier statement.
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18. During cross-examination by Ld. APP she admitted that her son Manoj was having mobile phone No.9643368506. The words OM and MA were tattooed on the hand of her son. She admitted that motorcycle No. DL 11 SF 7888 was released to her and that the photographs Ex.PW6/1 to 5 were taken at the time of release of motorcycle. She identified the motorcycle as Ex.PW6/Article1. She also admitted that she had given the physical description of Manoj and also the clothes worn by him. On 29.04.2017 she along with one police officials went to SRHC hospital where her blood sample was taken. She stated that she cannot confirm if accused was arrested on 14.04.2017 or that she came to know about his arrest on 15.04.2017.
19. During cross-examination by the Ld. Defence counsel she stated that she along with her neighbors went to PS on 26.03.2017. She got recorded her statement. She does not know if she told the police that her brother visited the house on 24.03.2017 after 22 days since her son went missing she came to know about death of her son but she cannot tell the date and month. Sunil her brother-in-law (Devar) informed her about death of her son. She identified clothes of her son in the police station. She identified the purse of her son before Ld. Magistrate in the court. She denied the suggestion State Vs. Anoop SC No.127/17 :: 9 ::
that her son was a drug addict. She denied the suggestion that she had seen the purse of her son in the police station. However, she had seen the clothes and chappal of her son in the police station. She told the police that her brother Mahipal informed her that he had seen the accused with her son. However, this fact was not found mentioned in her statement Ex.PW6/B. Her brother told this fact to her on
27.03.2017. She had not gone to police station to tell this fact that her brother had seen the accused with her son. She had not told the police that she had also gone to the house of Anoop in search of her son and the same was found locked. She does not know if Anoop was in Delhi on 26.03.2017 as she had not seen him in Delhi. She had given the photograph of her son to the police when she lodged the missing report. Police had not asked for ID proof of her son. She stated that ID proof was in the purse of her son. She denied the suggestion that accused was residing at his house in his village since 24.03.2017 or that he has been falsely arrested in this case.
20. After cross-examination Ld. APP submitted that he could not show the case property to the witness and prayed that he be permitted to put the case property to the witness. The case property i.e. the purse containing the photograph and Aadhar card of Manoj Maan and the rings shown to the State Vs. Anoop SC No.127/17 :: 10 ::
witness who identified the same and are collectively Ex.PW6/Article1.
21. Ld. Defence counsel further cross-examined the witness wherein she stated that she does not remember the date on which she came to the court for identification of wallet of her son. At the time of identification there were many purses on the table and she identified the purse of her son. She also identified the photo, ring and Aadhar card of her son. There were 8 to 10 wallets on the table. She denied the suggestion that this is the same photograph which he handed over to the police at the time of lodging missing report or that she also handed over Aadhar card to the police at the time of lodging missing report.
22. She denied the suggestion that accused was working as driver of Amit or from 24.03.2017 accused was driving Tata ACE in the area of Alipur and Narela. She deposed that mobile phone of her son was with Anoop as per the location of her son accused Anoop was traced by the police as told to her by police.
23. DD No.25A dt.26.03.2017 i.e. missing report No.0027/2017 and computer generated copy of missing person Manoj Kumar was shown to the witness. The GD 25/A is Ex.PW6/A and missing report is Ex.PW6/B.
24. During cross-examination for the accused she State Vs. Anoop SC No.127/17 :: 11 ::
deposed that she did not tell the police in her statement that she went to her office on 24.03.2017 and at 2:00 pm she left for Haridwar from her office. She did not hand over the ticket of traveling to Haridwar and return journey to the IO. She does not remember if she told the police that she received call of her daughter Sunena who informed her that Manoj had not returned home and she told her daughter that Manoj had gone for work in a marriage party as a waiter and would come late or in the morning. She was confronted with her statement where it was not found mentioned that she made call to the friends of the Manoj on the numbers saved in her contact list of her mobile phone and the mobile phone of Manoj was switched off. She made call to the friend of Manoj namely Manish Budh Pur and also to Bhabhi Anu. After talking with her Bhabhi she made several calls to the friends of Manoj and his acquaintance but the calls were not picked by them. She did not make any call on the mobile phone of Anoop as she was not acquainted with him. She does not know if she told the police that she left for Delhi in the morning of 26.03.2017. Her daughter informed her on 26.03.2017 that Manoj had gone on motorcycle on 24.03.2017 at about 1:00 pm. She came to know on telephone from her daughter in the night hours of 24.03.2017 that Manoj is missing. On 26.03.2017 she reached at PS:
State Vs. Anoop SC No.127/17 :: 12 ::
Alipur. She was accompanied by her neighbourers. Her statement was recorded in the register. She does not know if she told the police that her brother visited the house on 24.03.2017. after 22 days since her son went missing she came to know about his death through her Devar Soni. She had not received the dead body and also not seen the same.
She identified the clothes in the PS. She also identified the purse of her son before Ld. Magistrate. She denied the suggestion that her son was a drug addict. She denied the suggestion that she had seen the purse and the other belongings of her son in the police station. She had seen the clothes and chappal of her son in the police station. Her brother told her on 27.03.2017 that he had seen the accused with her son. She denied the suggestion that her brother never told her any such fact. She did not tell the police that she searched her son every where and also at the house of Anoop. She along with her daughter reached the house of Sundri and she told her that Anoop had not returned home since 24.03.2017 at 1:00 pm. She does not know if Anoop was in Delhi on 26.03.2017 as she had not seen him in Delhi. She had given the photograph of her son to the police when she went to lodged the missing report. Police had not asked for the ID proof of her son. The ID proof of her son was in his purse. She denied the suggestion that she had falsely named State Vs. Anoop SC No.127/17 :: 13 ::
Anoop. She denied the suggestion that Anoop was residing at his house in his village since 24.03.2017. She does not know if her blood sample was taken by the doctor or compounder.
25. Ld. APP requested to re-examine the witness as the case property could not be shown to the witness. The request was allowed. The case property was shown to the witness and she identified the purse, the ring, passport size photograph and the Aadhar card of her son collectively as Ex.PW6/Article-1.
26. During cross-examination by the Ld. Defence counsel she stated that she does not remember the date on which she came to the court for identification of wallet of her son. At the time of identification there were 8 to 10 wallets on the table and out of that she identified the wallet of her son. She denied the suggestion that photograph Ex.PW6/DX i.e. the part of Ex.PW6/Article1 is the same photograph which she handed over to the police at the time of lodging missing report. She denied the suggestion that accused was working as driver of Amit or that from 24.03.2017 accused was driving Tata Ace in Delhi in the are of Alipur and Narela. Mobile phone of her son was with Anoop and as per location of her son accused was traced by the police as told to her by the police.
State Vs. Anoop SC No.127/17 :: 14 ::
27. Sunena was examined as PW-7. She deposed that on 24.03.2017 in the morning hours her mother left for Haridwar. Her brother Manoj woke up at 12 noon. After taking meal he left the house and did not come back. In the night she made a call to her mother and told that brother had not returned. Mother told her that Manoj used to return late in the night and may come late. Manoj did not return in the night. Next day in the morning she again made call to her mother and told that Manoj had not returned during the night her mother asked her to wait till evening. But Manoj did not turn up. On 26.03.2017 in the morning she again informed her mother that Manoj had not returned. Her mother told that she had already started back. Her mother reached home at 6:00 pm. On the asking of her mother she went to the house of friends of Manoj whose name she does not remember that friend told "Manoj uske saath kaafi time se nahi hai". Then she returned home, she found that her mother was weeping and police was at home. Police told her mother that bike of Manoj had been found. At about 8:00 pm her mother went to the police station to lodge the report thereafter police started searching her brother. On 24.03.2017 her Mama Sanjay came home and told that he had seen Manoj at about 1:00 or 1:30 pm with Pawan near Bada Shiv Mandir.
28. Ld. APP cross-examined the witness as she resiled State Vs. Anoop SC No.127/17 :: 15 ::
from her earlier statement. During cross-examination by the Ld. APP she admitted that her brother left home on motorcycle DL 11 SF 7888 make TVS Starcity. She denied the suggestion that her uncle did not tell her that he had seen her brother with Pawan near Bada Shiv Mandir. She admitted that maternal uncle told her that he had seen her brother Manoj with Anoop at 2:00 pm on 24.03.2017. By mistake she said that her maternal uncle told that he had seen her brother Manoj with Pawan. In her presence Anoop never visited their home. Her maternal uncle told that Anoop used to visit his house usually.
29. During cross-examination by the defence counsel she stated that she had gone to the police station with her mother to identify the clothes. Her maternal uncle told her on 27.03.2017 that he had seen her brother with Anoop. She did not make any complaint to the police after coming to know this fact from her maternal uncle. Her mother in anger went to the house of Anoop after coming to know this fact. Her mother was also present when her maternal uncle told this fact. She admitted that her mother did not visit the police station on 27.03.2017 after coming to know this fact. She did not tell the police that her brother left at 2:00 pm. She was confronted with Ex.PW7/DX where the time is mentioned as 2:00 pm. On 24.03.2017 her maternal uncle came home at State Vs. Anoop SC No.127/17 :: 16 ::
about 3:00 pm. Her maternal uncle had gone to police station on 27.03.2017 to inform that he had seen Manoj with accused on 24.03.2017 at 2:00 pm near Bada Shiv Mandir. She denied the suggestion that her brother was a drug addict. She denied the suggestion that her uncle also went along with her mother on 26.03.2017 to the police station to lodge missing report. It takes 10 minutes to reach their house from Bada Shiv Mandir. Husband of her elder sister accompanied her mother to the police station for lodging the missing report.
30. Jitender was examined as PW-8. He deposed that on 27.03.2017 he along with his friend Parmod, Santosh, Jawahar were present out side their factory situated at N-128 Bawana Industrial Area, Sector-5, Bawana. While they were talking with each other they felt a stinking smell. They went to the adjacent building in which only the basement had been constructed and garbage was lying there. He peeped in the basement and saw a human hand. Thereafter, he made a call at 100 number from his mobile Phone No: 9811478969.
Police reached there and found a dead body.
31. During cross-examination by the Ld. Defence counsel he deposed that he is working in the factory for the last 4 years. It was between 9:00 am to 10:00 am when he was standing outside the factory along with the above named State Vs. Anoop SC No.127/17 :: 17 ::
persons. He made the call at 100 number between 10:00 am to 11:00 am. Firstly PCR van came and then the police officials visited that place. He had not entered the basement where body was found and hence cannot tell if the police took the search of the dead body. Police called many persons there and asked them to identify the dead body but none was able to identify. His statement was recorded on the spot by one Sh. Satya Narain.
32. Ld. APP dropped Parmod from the list of witnesses as he was of the repetitive nature as of PW-8 Jitender. Statement of Ld. APP recorded in this regard on 25.11.2017.
33. Sh. Mahipal Singh was examined as PW-9. He deposed that on 23.03.2017 his sister Mukesh requested him to reach her house as she is going to Haridwar and her daughter Sunena would be at home. On 24.03.2017 while he was going to the house of his sister he saw his nephew Manoj standing near bike along with one boy. Later on he came to know name of that boy as Anoop. Manoj gave him indication that he is coming home and asked him to come home. He reached the house of his sister at about 2:45 or 3:00 pm. On 24.03.2017 Manoj did not return home during the whole night. On 25.03.2017 he left for his house in the morning. The daughter of his sister was at home with small child.
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34. On 26.03.2017 in the morning hour he came to know that Manoj had not returned home and his bike is found in ganda nala. This information was given to her by Mukesh. After 15-20 days accused was apprehended by the police. He was called to the police. He reached police station Alipur may be 13/14 April 2017. On that day he came to know that his nephew Manoj had been murdered. He told the police that last time he had seen Manoj in the company of accused Anoop. He visited the scene of crime along with the police. He identified Anoop in the police station as the same person with whom he had seen Manoj. Accused led them to sector-5 under construction building Bawana where he killed Manoj. IO prepared pointing out memo Ex.PW18/E. Thereafter, accused led them to the place where he had thrown the motorcycle that is the ganda nala, Idgah village Alipur Budhpur road. IO prepared the pointing out memo as Ex.PW18/H. Accused led them to his rented room near Hans Dharam Kanta village pooth khurd from where he produced his clothes from a blue colour bag i.e. the ready made nylon pyjama. That pyjama was wrapped in a piece of cloth, sealed and seized vide memo Ex.PW18/F that pyjama was taken out from a bundle lying on the shaft in that room. One wallet was also recovered. There was no ID in the said wallet however one ring was found in the same. The wallet and that State Vs. Anoop SC No.127/17 :: 19 ::
ring were seized by the police vide memo Ex.PW18/B. The witness identified the ring, wallet, photo of Manoj and Aadhar card of Manoj as Ex.PW6/1. He identified the pyjama as Ex.PW18/Article-1 and the motorcycle as Ex.PW6/Article-1. A leading question was put to the witness by APP with the permission of the court and it was suggested to him that from the right side pocket of pyjama wallet was recovered. The witness stated that he does not know from which pocket wallet was found either it was right or left. He does not know if the Aadhar card was in the wallet or not.
35. During cross-examination by the Ld. Defence counsel he deposed that he left the house at about 1:00 or 1:15 pm. He reached the house of his sister within 45 minutes. He was not having any driving license. On 26.03.2017 in the morning he came to know that his nephew Manoj had not returned. He does not remember the date when he visited the police station but he visited the police station 5-6 times. He accompanied his sister on 27.03.2017 and the missing complaint was lodged. Since 26.03.2017 till the arrest of accused he stayed at the house of his sister Mukesh. Another complaint was made after the bike of Manoj was recovered. While making complaint he did not tell the police that he suspect anybody. He also did not tell the police till 14.04.2017 that he saw Manoj in the company of Anoop State Vs. Anoop SC No.127/17 :: 20 ::
lastly. He also does not know if his sister told this fact to anybody. He denied the suggestion that his sister Mukesh was also with him on 14.04.2017 when he visited the police station and identified Anoop. He admitted that he saw Anoop first time in the police station. He also stated that in a fit of anger he also slapped him. He reached police station on 14.04.2017 between 7:00 am to 7:30 am. He remained there for about 1½ or 2 hours. During his stay in the police station no document was prepared. From the police station he returned to the house of his sister. On 14.04.2017 in the evening he reached the place of incident along with three police officials namely Satish Kumar, Gajender Singh and Amit. Accused was also with them. He was in the car of Soni, they remained at the place of occurrence for about 30 minutes. 8 to 10 persons gathered at the place of occurrence from nearby factories. Police wrote something at the place of occurrence but he does not know what was written by the police. He admitted that owner of the premises was not called. He could not go down stair due to his handicap. He only went to 2-3 steps only. He admitted that he signed the pointing out memo in the police station. He denied the suggestion that pointing out memo was prepared in the police station. Police reached the place of occurrence in police gypsy. From the place of occurrence accused led them State Vs. Anoop SC No.127/17 :: 21 ::
to his rented house. They reached the rented accommodation of accused at about 5:30 or 6:00 pm. Day light was still there when they reached rented accommodation. It took them 30 minutes to reach the place of occurrence. But he does not remember at what time they reached there. There were 10 to 12 rooms in one line, so far as he remember, in the building where the accused was residing. The landlord was there as he was having Dharam Kanta near that building. Some documents were prepared by the police at the room of accused but he did not sign the same at that place. Police made inquiries from the landlord. The lock of the room was broke open by the police. He does not know if police seized that lock. There were clothes of ladies and gents in that parcel and the bag. He does not know where Anoop was residing after 24.03.2017. They remained at the rented accommodation of accused for about an hour. Police officials, accused and he entered the room of the accused. He did not make any complaint with the police on 24/25/26.03.2017. He denied the suggestion that Aadhar card and photograph of deceased were taken by the police at the time of lodging missing report. Police did not record the statement of Soni. In reply to a question as to at what time they reached Ganda Nala, he deposed that they started from police station at about 5:00/ 5:30 pm and from there they State Vs. Anoop SC No.127/17 :: 22 ::
reached Ganda Nala. It took them hardly 5 to 10 minutes. He denied the suggestion that he had not seen accused Anoop with Manoj on 24.03.2017. He admitted that name of accused was told to him in the police station by the police, when he saw the accused in the police station he told the police that he had seen Manoj with him. He admitted that Manoj was a drug addict and he got admitted Manoj in the de-addiction centre. In reply to a court question he stated that firstly they went to Ganda Nala and then sector-5 as Ganda Nala falls on the way to Bawana.
36. Hari Om Tayal was examined as PW-10. He deposed that on 24.03.2017 he was informed by the police that one dead body is lying in the basement of their factory No.N-129, Sector-5 Bawana Industrial Area but said factory is in the name of his father. He could not complete the construction of factory as his father was suffering from various ailments. He furnished the photocopy of ownership documents to the police. He proved the photocopy of the perpetual lease deed and site plan as Ex.PW10/A.
37. During cross-examination by the Ld. Defence counsel he stated that after 3-4 days of 24.03.2017 he was informed by the police that dead body was found in the basement of the factory. After knowing this fact he reached his factory.
Only one police official contacting him but he cannot tell his State Vs. Anoop SC No.127/17 :: 23 ::
name. His statement was recorded in the police station but he does not remember date when he visited police station. Thereafter, he never visited the police station.
38. Baljeet Singh was examined as PW-11. He deposed that he does not know any person by the name of Anoop. He had never seen Anoop. His Munshi Sanchit Tiwari made call to him and informed that police is making inquiry from him.
Sanchit Tiwari called him at property No.149, Pooth Kurd Delhi where he had constructed 20 rooms for letting out the same. He reached the property where four police officials met him. Police asked him pointing one person as to whether that person visit his property. He had not seen that person to whom police pointed out and said that he had not seen that person. Police noted down his address and mobile number. Ld. APP cross-examined the witness as he was resiling from his earlier statement. During cross-examination by the Ld. APP he denied the suggestion that he had let out room No.36 to Smt. Ram Sundri through his known Sonu who is son in law of Smt. Ram Sundri. He denied the suggestion that accused Anoop is known to him. He stated that there was darkness in the street therefore he had not seen the person pointed out to him. He admitted that there was one person in the custody of the police when inquiry was made to him.
State Vs. Anoop SC No.127/17 :: 24 ::
39. During cross-examination by the defence counsel nothing material came to discredit the witness.
40. Sh. R.P. Singh was examined as PW-12. He deposed that on 25.03.2017 at about 6:00 am he was going to his house from Narela via Alipur Ganda Nala. When he reached behind Idgah near Ganda Nala he saw one motorcycle lying in ganda nala. He made a call at 100 number from his mobile phone No: 9311526263. PCR Van came and recorded his name and particulars. The testimony of the witness has gone unchallenged and uncontroverted.
41. ASI Rattan Lal was examined as PW-13. He deposed that on 26.03.2017 at about 6:00 pm he received DD No.19A Ex.PW13/A that one motorcycle is lying in Ganda Nala Alipur behind Idgah. He along with Ct. Krishan reached there. One motorcycle TVS Star Black colour No.DL 11SF 7888 was lying in the Ganda Nala. He find out from the data that motorcycle is registered in the name of Smt. Mukesh W/o Sh. Satbir. The motorcycle was seized vide memo Ex.PW13/B. Thereafter, he went to the house of Smt. Mukesh who informed that this motorcycle was in possession of her son Manoj who had left the house on 24.03.2017 at about 2 Pm with motorcycle and is missing since then. She also gave the description and built of her son and informed that her son was a drug addict. He recorded the missing report of Manoj State Vs. Anoop SC No.127/17 :: 25 ::
and DD No.25A Ex.PW6/A as told by Smt. Mukesh. On the direction of SHO further inquiry with regard to missing of Manoj was conducted by SI Gajender.
42. On 01.07.2017 he along with Inspector Satish went behind Idgarh Ganda Nal at a distance of 200 meters from pullia. He pointed out the place where the motorcycle was found. Inspector Satish prepared the site plan at his instance. He identified the motorcycle in the photograph Ex.PW6/1 as Ex.PW6/Article-2.
43. During cross-examination by the defence counsel he deposed that he reached Ganda Nala at 6:20 pm. No public person was present there. The caller had already left the spot. He along with Ct. Krishan reached the house of Smt. Mukesh at about 7:30 pm. He had not recorded the statement of Smt. Mukesh and any other person. He had stayed at the house of Smt. Mukesh for about 15 minutes. No family member of Manoj came to the police station for lodging missing report. He lodged the missing report by getting information and description from Smt. Mukesh. Missing report was not signed by any one. Inspector Satish prepared the site plan in noon hours at Ganda Nala. No public person was joined at the time of preparation of site plan. They remained at Ganda nala for about 15-20 minutes.
44. Ct. Chanchal was examined as PW-14. On State Vs. Anoop SC No.127/17 :: 26 ::
27.03.2017 he was posted at CPCR PHQ Extension No.122.
On that day at about 11:58:19 hours a call was received from mobile No.9811478969 that Bawana H.No.128 Sector-5 Vardhman Mall "yahan ek dead body padi hai". He filled this information and dispatched the message at 11:59:59 hrs. He proved the computer generated copy of PCR form as Ex.PW14/A. Nothing material came to discredit the witness during the cross-examination by the defence counsel.
45. Ct. Nitin Sharma was examined as PW-15. He deposed that on 26.03.2017 he was posted at CPCR and working on extension No.141. On that day at 17:59:56 hrs a call was received from mobile phone No.9311526263 that "Alipur Idgah nale ke pass ek bike padi hai". He filed this information and dispatched at 18:01:18 hrs. He proved the computer generated copy of PCR form as Ex.PW15/A. Nothing material came to discredit the witness during the cross-examination by the defence counsel.
46. ASI Sukram Pal Singh was examined as PW-16. He deposed that on 10.04.2017 he was working as duty officer at PS: Alipur from 4 pm to 12 midnight. At 7:40 pm SI Gajender presented a rukka to him. He got fed the contents in the computer. He proved the computer generated copy of FIR as Ex.PW16/A. He made endorsement Ex.PW15/B on the rukka regarding registration of FIR. He proved the State Vs. Anoop SC No.127/17 :: 27 ::
certificate u/s 65B Evidence Act as Ex.PW16/C.
47. On 26.03.2017 also he was working as duty officer. ASI Rattan Lal made DD No.25A Ex.PW6/A regarding missing of Manoj S/o Mukesh since 24.03.20217 at 2:00 pm with motorcycle. ASI Rattan Lal also mentioned the description of Manoj. Further inquiry was made by SI Gajender. The testimony of witness has gone unchallenged and uncontroverted.
48. ASI Sat Naryan was examined as PW-17. He deposed that on 27.03.2017 he received DD No.34B Ex.PW17/A that one dead body is lying near Vardhman Mall, Sector 5 Bawana H.No.128. He along with HC Anand went to the said place where they met Pankaj and Parmod who informed that one dead body is lying in the basement of N-129. When they reached the basement they found one dead body of a height 5'9", wheatish complexion, strong built. On the dead body blue colour jeans, Pink colour shirt were found, there was injury on the face. Crime team was called. Crime team inspected the scene of crime and took the photographs. The dead body was shifted to the mortuary of BSA Hospital through Ct. Rajesh. A pair of leather chappal, three match box, out of which two were empty, one foil having residue of smack were put in a cloth parcel, sealed with the seal of SNR and seized vide memo Ex.PW17/B. The blood stained piece State Vs. Anoop SC No.127/17 :: 28 ::
of brick on which the letters MK were found embossed was put in a polythene, wrapped in a cloth piece sealed with the seal of SNR and seized vide memo Ex.PW17/D. The photographs of the dead body were got published in the newspaper and also sent on ZIP net. Hue and cry notices were also published. The dead body could not be identified. On 11.04.2017 he prepared the inquest documents including form 25.35 Ex.PW17/E. Wireless message Ex.PW17/F. Zip net report Ex.PW17/G. Statements of Parmod Singh and Pankaj as Ex.PW17/H and Ex.PW17/I respectively. Application for preserving the dead body Ex.PW17/J and moved application Ex.PW17/K for conducting post mortem. After the post mortem the dead body was sent to Sarai Kale Khan through Ct. Rajesh Singh for cremation. The body was cremated vide CR No.532 Ex.PW17/L. After the post mortem the doctor handed over the exhibits and sample seal which is seized vide memo Ex.PW17/M.
49. On 20.04.2017 he along with Inspector Satish went to the scene of crime where IO prepared the site plan Ex.PW17/N at his instance. On 23.05.2017 he was called at the scene of crime. He reached there where Ct. Naveen met him. Ct. Naveen took the measurements and prepared rough notes at his instance. The testimony of the witness has gone unchallenged and uncontroverted. The witness was recalled State Vs. Anoop SC No.127/17 :: 29 ::
for cross-examination on the application of defence.
50. During cross-examination he stated that he received DD No.34B at 12:02 pm and reached the spot on foot within 5 minutes. He did not call the owner of property No. N-129. The crime team reached the spot at about 1:00 pm. He did not send the brick found on the spot to the FSL and also not to the finger print bureau. He did not prepare any site plan of the place of occurrence. Owner of building was not called at the time IO prepared the site plan. He does not remember for how much time they remained at the place of occurrence on 20.04.2017. He did not obtain signature of any public persons on the memos. On 25.05.2017 site plan was prepared by Ct. Naveen. He denied the suggestion that exhibits were tempered by the IO or that all the documents were prepared while sitting in the police station. He gave the description of the dead body in the hue and cry notice Ex.PW17/DX as per his own observation of the dead body.
51. SI Gajender was examined as PW18. He deposed that on 26.03.17 GD 25A Ex.PW6/C, regarding missing of Manoj Kumar was marked to him. He got uploaded the photo and the report on Zipnet, informed Doordarshan, NCRB, SCRB and Missing Person Squad. No clue was found of the missing person.
52. Complainant Smt. Mukesh levelled allegations that her State Vs. Anoop SC No.127/17 :: 30 ::
son was seen with the accused by her brother. On 05.04.17, he made inquires at the village of Anoop but he was not found at his house. On 10.04.17, Smt. Mukesh came to the police station. He recorded her statement Ex.PW6/B made endorsement Ex.PW18/A and presented the rukka to the duty officer for registration of FIR. Duty Officer registered FIR No. 127/17 U/s 365 IPC. He made efforts to search Anoop and Manoj but no clue was found.
53. On 14.4.17, he along with secret informer went to Swami Shradhanand Collage and secret informer informed him that Anoop can be apprehended in front of Shradhanand College. On the pointing out of secret informer, he apprehended the accused and produced him before Inspector Satish Kumar in the police station. IO interrogated the accused Anoop and arrested him vide arrest memo Ex.PW18/B. His personal search was conducted vide memo Ex.PW18/C. Accused made the disclosure statement Ex.PW18/D. The witness has also corroborated the testimony of PW9 Mahipal that accused pointed out the place of commission of offence vide pointing out memo Ex.PW18/E. Thereafter, accused led them to his tenanted room situated near Hans Dharam Kanta, village Pooth Khurd Room No.36. Accused took out one blue colour pyjama from the bag lying on the shaft in that room. From the pocket of State Vs. Anoop SC No.127/17 :: 31 ::
that pyjama one wallet containing the Aadhar Card of deceased Manoj, photo of Manoj and one yellow colour ring were recovered. The pyjama was wrapped in cloth piece sealed with the seal of SK and seized vide memo Ex.PW18/F. The wallet along with documents and ring was wrapped in a cloth, sealed with the seal of SK and seized vide memo Ex.PW18/G. Accused also pointed out the place where motorcycle was found vide pointing out memo Ex.PW18/H. The witness had identified the wallet along with documents and ring as Ex.PW6/1 and the pyjama as Ex.PW18/Article 1. He also identified the accused.
54. During cross examination by ld. Defence counsel he deposed that he does not remember the date when Smt.Mukesh levelled allegation against Anoop. He does not remember on which date Mukesh told them that her brother had seen Manoj lastly with Anoop. It was told after 1-2 days of lodging of missing report. He does not record the statement of brother of Mukesh in this regard, however, he made inquires from him. Statement of brother of Mukesh was recorded after registration of case. He did not record the statement of any neighbour of Anoop. He came to know that mother and sister of accused were also residing with him in that room. He does not remember the date when he made inquiries from mother and sister of Anoop. He had not State Vs. Anoop SC No.127/17 :: 32 ::
mentioned in the rukka that Manoj was seen with Anoop by maternal uncle of Manoj. However, it is mentioned that mother of Manoj came to know that Manoj was lastly seen with Anoop. He had not recorded the statement of Mukesh that her brother had seen Manoj in the company of Anoop. Mahipal might have met him 5-10 times.
55. On 14.04.17, Mahipal was called to the police station by Inspector Satish Kumar. Mahipal reached the police station in the evening at about 4-4.30 p.m. He apprehended Anoop at about 3.30 p.m. on 14.04.17. He produced accused before Inspector Satish at about 4.30 p.m. Inspector Satish arrested the accused at about 5.00 p.m. They left the police station at 5.50 p.m. It took them 1.30 hour to reach the place of occurrence. They were in government gypsy. They remained on the spot for about 30 minutes. He does not remember if IO record the statement of any public witness at the spot. He denied the suggestion that witness has signed the pointing out memo in the police station.
56. They reached the rented accommodation of accused at about 7.30-7.45 p.m. He does not remember if IO recorded statement of any person at the rented accommodation of accused. The landlord was also joined at the time of recovery. The blue colour bag was not seized. He does not remember from which pocket of the wallet the State Vs. Anoop SC No.127/17 :: 33 ::
Aadhar card, photograph and ring were recovered. The landlord is not witness to the seizure memo. He reached there after the recovery had already been effected.
57. They remained at the drain for about 15 minutes. It took them to take 5-10 minutes to the police station. He admit that accused is a driver but cannot confirm if he was working on the vehicle of Amit.
58. HC Manoj was examined as PW19. He deposed that on 27.03.17 he along with mobile crime team reached plot no.N-127, Sector 5, Bawna Indl. Area. A dead body was lying on the spot. He took 11 photographs Ex.PW19/A1 to Ex.PW19/A11 of the scene of crime from different angles. He proved the negatives as Ex.PW19/B1 to Ex.PW19/B11. A leading question of was put to the witness by Ld. Addl. PP with the permission of the court, wherein he admitted that they visited plot no. 129, Sector 5, Bawana.
59. During cross examination by ld. Defene counsel he deposed that they reached the scene of crime at 1.10 p.m. They remained at the spot till 1.40 p.m. He cannot tell how many police officials were there at scene of crime.
60. Dr. Sandeep Garg was examined as PW20. He conducted the postmortem on the body on 11.04.17. After postmortem examination, he opined that cause of death is cranio-cerebral damage consequent to injury to head. All State Vs. Anoop SC No.127/17 :: 34 ::
injuries are ante-mortem in nature, fresh in duration, prior to death and caused by blunt force impact/weapon. After postmortem, the viscera was preserved along with blood sample, clothes, blood on gauze, teeth were sealed and handed over the police along with sample seal. He proved the postmortem report as Ex.PW20/A.
61. He has also perused the FSL result Ex.PX. After perusal of FSL report, he has stated that the cause of death remains the same as mentioned in postmortem report Ex.PW20/A.
62. During cross examination by ld. Defense counsel, he denied the suggestion that the injuries found on the dead body could be sustained due to fall on bricks.
63. Inspector Satish Kumar was examined as PW-21. He deposed that on 14.04.2017 SI Gajender produced accused Anoop before him. He fully corroborated the testimony of PW-18 regarding the arrest of accused, recovery at the instance of accused and pointing out. He further deposed that on 20.04.2017 he along with ASI Sat Narain reached the scene of crime where he prepared site plan Ex.PW17/B. On 29.04.2017 he sent Ct. Mahavir with Smt. Mukesh to SRHC Hospital where her blood sample was taken vide MLC Ex.PW21/A. Ct. Mahavir handed over to him one sealed parcel along with sample seal which he seized vide memo State Vs. Anoop SC No.127/17 :: 35 ::
Ex.PW4/A.
64. On 03.05.2017 the exhibits were sent to FSL and he recorded statements of witnesses. On 15.05.2017 he moved application for TIP of case property and the TIP was conducted where the witness Smt. Mukesh correctly identified the case property.
65. On 23.05.2017 Ct. Naveen accompanied him and ASI Sat Narain to the scene of crime. Ct. Naveen took measurements and prepared rough notes and thereafter prepared scaled site plan of the place of occurrence.
66. On 23.06.2017 the exhibits were sent to FSL Rohini.
On 24.06.2017 he recorded the statement of owner of plot where dead body was found.
67. On 01.07.2017 he along with ASI Rattan Lal reached the place where the motorcycle was found and prepared the site plan Ex.PW21/B. Thereafter he prepared the charge sheet. He also filed the FSL result after collecting the same which are Ex.PX and PY. He identified the accused and also the case property.
68. During cross examination by the Ld. Defence counsel he deposed that SI Gajender produced accused Anoop before him at about 4:30 pm on 14.04.2017. He does not know at what time SI Gajender apprehended accused Anoop. He interrogated the accused for about 15 minutes.
State Vs. Anoop SC No.127/17 :: 36 ::
He informed the mother of accused about his arrest. The arrest memo of accused was prepared at about 5:00 pm. Mahipal is the witness of the arrest and personal search memo of accused but after seeing the arrest memo and personal search memo the witness stated that these documents do not bear signature of Mahipal. They left the police station at about 5:50 pm in Govt. Gypsy. It took them one hour to reach the scene of crime. Mahipal was not present in the police station when the SHO produced the accused before him. He called Mahipal in the police station through beat Constable. Mahipal reached the police station at about 5:00 pm. He remained at the scene of crime for about 30 minutes. The owner of the building was not called on the spot. They left the scene of crime at about 7:30 pm. It took them 20 to 25 minutes to reach the rented accommodation of accused from the scene of crime. It was a four storied building and there were about 50 rooms. The tenanted room of accused was on first floor. He recorded the statement of owner of the building. The owner of building did not get the verification done with respect to the applicant. No rent agreement was executed between the accused and the owner. The owner reached there after the recovery. He requested public persons to join the proceedings but none agreed. The room was lying open when they reached there.
State Vs. Anoop SC No.127/17 :: 37 ::
They remained there for about 30 minutes. He made inquires from the neighbours of scene of crime to find out if any dead body was recovered on 14.04.2017. There were no ladies clothes in that bag. Only gents clothes were there in that bag. The spot where motorcycle was thrown by accused at 8:45 pm. No public person was found at that place. They remained there for about 20 minutes. He denied the suggestion that documents was prepared while sitting in the police station. He returned to the police station at about 9:20 pm. He did not collect the call detail record of the mobile phone number of Mahipal.
69. He does not remember at what time he reached the scene of crime on 20.04.2017 but it was in the morning. He reached there in his private car. He did not obtain signature of any public person on the site plan Ex.PW17/B.
70. On 29.04.2017 Ct. Mahavir took Smt. Mukesh to the hospital at about 10:00 am. He does not know by which mode of transport they reached the hospital. Ct. mahavir handed over the sealed parcel to him along with the sample seal in the police station at about 12:00 noon. He denied the suggestion that Aadhar card, ring and wallet were shown to the mother of deceased Smt. Mukesh in the police station.
71. On 23.05.2017 they reached the scene of crime at noon time and remained there for about 40 minutes.
State Vs. Anoop SC No.127/17 :: 38 ::
72. After prosecution evidence was closed Statement of accused was recorded u/s 313 Cr.PC wherein he denied the entire evidence. He stated that he has been falsely implicated. He wished to lead evidence in defence and thereafter the case was fixed for defence evidence.
73. Amit Kumar Mishra was examined as DW-1. He deposed that Anoop used to drive his vehicle No. DL 1LV 4073. Anoop used to reside at Alipur. Anoop never visited his residence. Earlier he was residing at Bawana in room No.36 in the house of Baljeet Dabas. Anoop used to park the vehicle at Alipur stand. One day police called Anoop, police interrogated him and arrested him.
74. During cross examination by the Ld. APP he stated that he has no document to show that Anoop was working as driver on his vehicle. The room No.36 was situated near Hans Dharam Kanta, Pooth Khurd Bawana Delhi. Rajan Singh Chauhan is father of accused Anoop. Anoop was arrested by the police on 14.04.2017. He never met Manoj. Anoop started working with him since January 2015. Earlier accused was working as driver with one Sonu Mann of Alipur. Accused is his brother-in-law. He had love marriage with sister of accused in the year 2008. He is not having any rent agreement that he is living in room No.36. Sanchit Tiwari was Manager of Baljeet. He has not rent receipt to show that he State Vs. Anoop SC No.127/17 :: 39 ::
was residing there. He is not having any rent agreement of a new place where he is presently residing upto 2017. Thereafter, defence evidence was closed and the case was fixed for final arguments.
75. I have heard Ld. APP for the State and Ld. Defence counsel for the accused and perused the record.
76. In this case there is no eye witness. The case is based upon circumstantial evidence. It is settled law that a person can be held guilty on the basis of circumstantial evidence also provided certain conditions are fulfilled. Before a person is held guilty and convicted on the basis of circumstantial evidence, all the circumstances are to be proved and established beyond doubt, the circumstances so proved and established shall form a complete chain, the circumstances proved and established shall point towards the guilt of the accused and shall be inconsistent with any hypothesis of innocence of the accused. The prosecution in the present case intends to establish the guilt of accused by proving the following circumstances.
The circumstance of Last seen Recovery of belongings of the deceased Recovery of blood stained Pyjama Pointing out of place of occurrence and the place where motorcycle of deceased was thrown State Vs. Anoop SC No.127/17 :: 40 ::
Absconding
77. I take up all the circumstances one by one. Circumstance of Last Seen
78. According to the prosecution case on 24.03.2017 Manoj left his house No.1156 Bada Shiv mandir wala road Alipur on 24.03.2017 on motorcycle No. DL 11 SF 7888 Ex.PW6/Article1 and thereafter did not return. Missing report in this regard was lodged. The DD entry No.25A was recorded at PS: Alipur on 26.03.2017 in this regard by ASI Rattan Lal. The true copy of the DD has been proved as Ex.PW6/A. Ld. APP contended that on 24.03.2017 Smt. Mukesh PW-6, the mother of Manoj went to Haridwar and she made a call to her brother Mahipal PW-9 to reach her house as her daughter Sunena is alone at home. Mahipal left for the house of her sister Mukesh and when he reached Bada Shiv mandir he saw his nephew (Bhanja) Manoj standing near his bike with one boy who was identified as Anoop. Manoj signaled PW-9 to reach home and he will come home lateron. Manoj did not return home thereafter. No one had seen him him alive thereafter. Ld. APP submitted that PW-9 Mahipal had seen Manoj in the company of accused on 24.03.2017 at about 2:00 pm. On 27.03.2017 one dead body was recovered from under construction building at Plot No. N-129 in the basement in the area of PS:
State Vs. Anoop SC No.127/17 :: 41 ::
Shahbad Dairy which was of Manoj as evidence from Ex.PY. Ld. APP submitted that by examining PW-9 prosecution has proved and established the circumstance of last seen which points towards the guilt of accused as accused nowhere explained as to when he separated from the deceased and at what place. Ld. APP submitted that this circumstance is also inconsistent with any hypothesis of innocence of accused.
79. Ld. Defence counsel submitted that onus was upon prosecution to establish this fact which the prosecution has failed. The missing report was lodged on 26.03.2017 that also not by Mukesh, the mother of the deceased but by ASI Rattan Lal. According to this report the deceased was wearing blue colour pants and shirt but when the dead body was recovered one orange colour shirt and blue colour jeans was found over the body. Even otherwise according to Sunena PW-7, who is the sister of deceased, Mahipal PW-9 told her and her mother on 27.03.2017 that he had seen Manoj with Anoop. SI Gajender PW-18 also stated that during investigation he came to know that deceased was lastly seen in the company of Anoop but he did not tell the date as to when he came to know that deceased was lastly seen with Anoop. Ld. Counsel submitted that according to the testimony of PW-7, PW-6 came to know on 27.03.2017 that Manoj was seen in the company of Anoop. Mukesh gave State Vs. Anoop SC No.127/17 :: 42 ::
the complaint Ex.PW6/B on 10.04.2017. SI Gajender made endorsement on the same which is Ex.PW18/A. But neither in the complaint of Smt.Mukesh PW-6 nor in the endorsement of PW-18 it is mentioned that Manoj was lastly seen in the company of Anoop by Mahipal. This fact itself creates doubt regarding the truthfulness of story of prosecution. Ld. Counsel submitted that if deceased was seen in the company of Anoop as alleged by the prosecution and was also in the knowledge of PW-6 then she should have certainly mentioned this fact in the complaint Ex.PW6/B. Non mentioning of this fact itself shows that it is an after thought only to implicate the accused.
80. After hearing the arguments and going through the record I found that according to the prosecution case Manoj went missing on 24.03.2017. Mother of Manoj made the complaint on 10.04.2017 but she did not mention that she had come to know from Mahipal that he had seen Manoj in the company of Anoop. She only mentioned that she had come to know that her son Manoj was seen with Anoop and since then Anoop is also missing. According to PW-9 Mahipal told to PW-7 and her mother on 27.03.2017 that he had seen Manoj with Pawan near Bada Shiv Mandir. It was only on the leading question put by Ld. APP that she stated that her maternal uncle told her that he had seen her brother State Vs. Anoop SC No.127/17 :: 43 ::
with Anoop at 2:00 pm on 24.03.2017 and by mistake she said that her maternal uncle told her that he had seen her brother with Pawan. This fact itself create doubt as to what was told by Mahipal to PW-6 and PW-7. It is also important to note that according to PW-9 Mahipal, he was not knowing that boy but can identify him which he did not 14.04.2017 in the police station. This statement of PW-9 is contradicted by PW-7 herself who deposed that her maternal uncle told that Anoop used to visit his house usually. If Anoop was visiting the house of Mahipal then he must be knowing him prior to 24.03.2017 which Mahipal never stated so and he also stated that Anoop had never visited his house.
81. It is also important to note here that according to evidence Mahipal visited the police station many times along with his sister Mukesh but his statement that he had seen deceased in the company of accused was never recorded before 10.04.17.
82. In the case of circumstantial evidence the proximity of space and time is also very important. According to PW-9 he had seen Manoj (deceased) in the company of Anoop on 24.03.2017 at 2:00 pm near Bada Shiv Mandir Alipur. The dead body has been recovered on 27.03.2017 at about 7:10 pm when the police got the information vide DD No.78B PS:
Shahbad Dairy from the basement of under construction State Vs. Anoop SC No.127/17 :: 44 ::
building at N-129 DSIDC sector-5 Bawana. The distance between the place of last seen and the place where dead body was found is very much and there is no evidence or witness that he had seen the deceased and accused going in that direction on the motorcycle or otherwise. There is also no proximity of time in the last seen and recovery of dead body. According to PW-9 Manoj and Anoop were seen together at 2:00 pm on 24.03.2017 and recovery is at 7:10 pm on 27.03.2017. There is a time gap of more than 41 hours in the last seen and the time of recovery.
83. It is also pertinent to mention here that post mortem on the dead body was conducted on 11.04.2017 from 2:30 pm to 4:00 pm. The post mortem report has been proved as Ex.PW20/A. According to the post mortem report the probable time since death is about within three weeks consistent with inquest papers. If we calculate backward from 11.04.2017 then three weeks are complete on 21.03.2017 whereas according to the story Manoj went missing on 24.03.2017. Keeping in view the above discussion in my opinion the prosecution has failed to prove and establish the circumstance of last seen. Even if it is believed for the sake of arguments that deceased and accused were seen together on 24.03.2017 at 2:00 pm near Bada Shiv mandir still there is no proximity of space and time from the time and State Vs. Anoop SC No.127/17 :: 45 ::
place of last seen and the time and place of recovery of dead body. The onus which was on the prosecution has not been discharged.
Recovery of belongings of the deceased
84. Ld. APP submitted that on 14.04.17 accused led the police team and also Mahipal to his room No.36 situated in Khasra No.252 near Hans Dharam Kanta village Pooth Khurd Delhi. Mahipal PW-9 was also with the police at that time. The room was situated on the first floor. From the shaft of that room from when blue colour bag accused took out one blue colour pyjama. From the right pocket of that pyjama one black colour rexine wallet was recovered. In the wallet there was Aadhar card of deceased, one photograph of deceased and one ring. All these articles were wrapped in a cloth piece, sealed with the seal of SK and seized. The test identification parade of all these articles was conducted. The TIP proceedings have been proved on record as Ex.PW5/B and the certificate is proved as Ex.PW5/C. According to the proceedings Smt. Mukesh, the mother of deceased correctly identified all these articles as of her son Manoj. Prosecution has examined Mahipal PW-9, SI Gajender PW-18 and Inspector Satish PW-21 to prove and establish this recovery.
All the three witnesses have fully supported the prosecution case and corroborated each other. By examining these State Vs. Anoop SC No.127/17 :: 46 ::
witnesses prosecution has proved recovery at the instance of accused of the belongings i.e. Ex.PW6/Article1. This recovery of the articles of deceased from the possession of the accused points towards the guilt of the accused and is also inconsistent with any hypothesis of innocence of accused.
85. Ld. Defence counsel submitted that accused never resided in that room. Prosecution has examined the owner of that building Sh. Baljeet as PW-11 who stated that he had not seen accused in that building and was not his tenant.
DW-1 Amit also deposed that Amit never visited his house i.e. Room No.36 where he was residing with his family. Ld. Counsel further submitted that no independent witness has been joined. There are more than 40 rooms in that building but no neighbour was joined at the time of alleged recovery. Non joining of independent witness itself creates doubt. Infact the Aadhar card and the photograph of Manoj were given to police by Mukesh at the time of lodging missing report which were planted upon the accused to create evidence. Ld. Counsel submitted that so far as the three recovery witnesses are concerned they have contradicted each other. As according to the story the wallet was recovered from right pocket of the pyjama but PW-9 says that he does not know from which pocket the wallet was State Vs. Anoop SC No.127/17 :: 47 ::
recovered. Ld. Counsel further submitted that even otherwise the Aadhar card and the photograph of deceased and even empty wallet was of no use for the accused why would he keep the same in his possession to be recovered by the police that also after so many days of the incident. Ld. Counsel fruther submitted that case property was planted and i.e. why no public witness was joined. It is prayed that as the prosecution has failed to prove and establish this circumstance, the benefit of the same be given to accused and he be acquitted.
86. After hearing the arguments and going through the record that there are three recovery witnesses i.e. PW-9 Mahipal, PW-18 Gajender and PW-21 Inspector Satish all the three have contradicted each other to the extent that recovery itself cannot be believed. PW-9 is the public witness who is also the maternal uncle of the deceased. He deposed that one wallet was recovered. There was no ID in the said wallet however, there was ring. He also does not say that there was any photograph in that wallet whereas according to the story there was Aadhar card as well as photograph of the deceased in that wallet. According to the story of prosecution the wallet was found in the pocket of the pyjama and pyjama was found in a bag. According to PW-9 in that bag there were clothes of ladies as well as gents. But State Vs. Anoop SC No.127/17 :: 48 ::
according to PW21 there were only gents clothes in that bag.
87. It is also important to note here that according to PW.9 on 14.04.2017 in the morning he saw the accused in the police station and identified him. He reached the police station along with one Soni uncle of deceased. Soni was with them at the time of recovery but Soni is not a witness. He also deposed that he was following the police in the car of the Soni but according to PW-18 and PW-21 they all were in gypsy. It is also important that according to PW-18 and story of prosecution the accused was apprehended at about 3:30 pm by PW-18 from in front of Shradanand College. But PW-9 deposed that he had seen the accused in the custody of police in the morning of 14.04.2017 itself. This creates doubt not only about the apprehension but also about the alleged recovery which is further strengthened due to contradictions in the testimony of PW9, PW18 and PW21. In view of the above discussion I am of the opinion that the onus which was upon prosecution has not been discharged. Prosecution has failed to prove this recovery.
Recovery of blood stained Pyjama
88. In this case prosecution has also supported its case on recovery of one blood stained pyjama Ex.PW18/Article1 of the accused which he allegedly wearing at the time of incident. There are again three recovery witnesses i.e. PW9, State Vs. Anoop SC No.127/17 :: 49 ::
PW18 and PW21. As per the discussion on the earlier circumstance they are not reliable and are not able to prove the recovery. Further more there is no evidence to show that there was any blood found on the pyjama. There is nothing to link the pyjama with the commission of offence. The FSL result has been proved on record as Ex.PY. This result does not show that blood was there on the pyjama. There is no DNA isolated to prove and establish that the blood of the deceased was found on that pyjama. Therefore even if the recovery of pyjama is admitted that does not link the accused with the commission of offence. This circumstance does not point towards the guilt of the accused and is not inconsistent with any hypothesis of innocence of accused. Pointing out of place of occurrence and the place where motorcycle of deceased was thrown
89. According to the prosecution story on 14.04.17 accused vide pointing out memo Ex.PW18/E pointed out the place where dead body was found and vide memo Ex.PW18/H where the motorcycle was thrown. There are three witnesses i.e. Mahipal PW9, SI Gajender PW18 and Inspector Satish PW21. They all are consistent on the point that accused led them to one under construction building and pointed out the basement of that building telling them it is the place where crime was committed. All the three witnesses State Vs. Anoop SC No.127/17 :: 50 ::
are consistent on this point. Ld. Defence Counsel argued that according to PW9 firstly the place where motorcycle was thrown was pointed out and thereafter the place of occurrence was pointed out. Whereas according to PW18 and PW21 the place where motorcycle was thrown was pointed out in the last. Ld. Counsel submitted that this is a major contradiction and creates doubt as to whether any such pointing out was made or not.
90. After hearing the arguments and going through the record I found that according to PW9 after starting from the police station at about 5 or 5:30 pm firstly they reached the place where motorcycle was thrown and then the place of occurrence whereas according to PW-21 they reached the place where motorcycle was thrown at about 8:45 pm. Keeping in view this contradiction which in my view is a major contradiction the pointing out is not established. Absconding
91. According to prosecution Anoop was absconding since 24.03.2017 as deposed by PW-6 Mukesh and PW18 SI Gajender. Anoop was not available at his rented accommodation and also at the permanent address. PW-6 also made call on the mobile phone of Anoop but he did not pick the same. After going through the testimony of PW-6 I found that though PW6 has stated that he had made a call State Vs. Anoop SC No.127/17 :: 51 ::
on the mobile phone of Anoop but during cross-examination she stated that she did not make any call on the mobile phone of accused as she was not acquainted with him. She also does not tell the date and time when she allegedly visited the residence of Anoop to inquire about Anoop. Similarly, so far as PW18 is concerned though he stated that he visited the house of Anoop but neither he stated the address nor the date and time of his visit. There is no evidence on record that since 24.03.2017 till 14.04.2017 accused was not available at his house. Infact police came to know for the first time on 10.04.17 that Anoop was lastly seen with Manoj and on 14.04.2017 itself Anoop was apprehended. It is also important to note here that the sister of accused told her that accused is roaming in the village. From this testimony of PW6 it is clear that he was not absconding. The onus which was on prosecution has not been discharged.
92. Keeping in view the above discussion on various circumstances in my opinion prosecution has failed to prove and establish all the circumstances. The circumstances do not point towards the guilt of the accused and are also not inconsistent with any hypothesis of innocence of accused. The chain is not complete. The accused is therefore, acquitted giving benefit of doubt. Accused be released on State Vs. Anoop SC No.127/17 :: 52 ::
furnishing Personal bond in the sum of Rs.15,000/- with one surety of like amount u/s 437(A) Cr.PC for a period of six months.
File be consigned to record room.
Digitally signed by
VIRENDER VIRENDER KUMAR
KUMAR BANSAL
Announced in the open court BANSAL
Date: 2018.09.14
16:28:35 +0530
today on 14.09.2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Anoop SC No.127/17 :: 53 ::